Donald J. Trump has become a major historical figure, towering over the first quarter-century of the third millennium of this uncommon era. He is the disruptor of the American republic, of the world economy and of the basic conventions of international relations among democracies.
Historical comparisons are made to the decline and fall of the Roman Empire. The Emperor Nero was said to fiddle while his capital burned to make way for his new palace. Trump prefers golf, but like Nero is obsessed with real estate and gold. In Washington now as in Rome then, a subservient Senate failed to act as the realm was threatened.
Written constitutions are the tip of the iceberg
Formal constitutional texts are the tip of the iceberg, making comparative constitutional law a tricky business. Constitutional law is a collective belief system. What makes a living and breathing constitution is largely unwritten. The key is the political culture in which a constitution plays a sometimes central, sometimes diminishing role. A constitution is an expression of national identity, which is never fixed. It reflects a particular social contract; if the terms of that contract change extensively and the constitution does not keep pace, it may be left behind, formally by being replaced in whole or in part, or informally by being paid what amounts to lip service.
In Rome, the ancient constitutional liberties were cited with reverence long after they were gone and replaced by an all-powerful emperor. “L’État, c’est moi” only applied as long as other political actors and the French people were willing to accept it. The centrepiece of a British royal coronation is still a ritual expressing the divine right of kings, which is politely ignored.
The United States has been undergoing a fundamental institutional and cultural transformation, a key dimension of which is presidential predominance. This executive takeover constitutes such a major revision of the living practice of the written Constitution that it may lead to its marginalization or irrelevance. What is striking is that a Supreme Court that prided itself on a return to the vision of the Founding Fathers of 1787 has done so much to undo that vision.
An acute crisis of constitutional legitimacy is now taking place in the United States as it approaches the 250th anniversary of its Revolution. It is, as often happens, caused by internal contradictions that can no longer be kept in check. Some, if not most, current constitutional norms will likely not survive unscathed.
An increasingly ignored Constitution
President Trump has demonstrated an unwillingness to leave power democratically. He has intimated that he would seek a third term in 2028. This would be clearly unconstitutional since it is prohibited by the 22nd Amendment adopted after Franklin D. Roosevelt died in office in 1945 at the beginning of his fourth term. No other president had dared to counter the tradition set by George Washington, who stepped down after two four-year terms – although some had considered it. This is a case of a democratic political practice hardening into a constitutional norm, one that is now again threatened.
Roosevelt justified his unprecedented decision to breach traditional political culture and stand for the third time in 1940 by invoking extraordinary circumstances: the invasion of France and the Blitz on London at the onset of World War II. American isolationism came to an end in December 1941 with the Japanese attack on Pearl Harbor and Germany’s declaration of war, just under a year after Roosevelt’s third term began. During World War II, the American presidency acquired temporary exceptional powers, as it had during the Civil War and World War I, and the imperial presidency reached its international zenith. Pax Americana prevailed over the entire world in its aftermath.
Richard Nixon in the 1970s and Trump in his first term undertook Illegal measures, but it was not until recently that the constraints of the rule of law came under direct attack. The outcome of the 2024 election brought a much more perilous and ominous, and perhaps irreversible, challenge to the foundation of the constitutional rule of law in the United States.
The King can do no wrong – or can he?
On December 17, 2024, the New York Times published an edited transcript of an episode of a noted podcast, The Ezra Klein Show. The guest host was constitutional scholar Kate Shaw, a professor of law at the University of Pennsylvania, and her guest was Gillian Metzger, a professor of law at Columbia Law School. What follows is an excerpt from their conversation:
SHAW: President-elect Donald Trump will enter office in January 2025 with more power and with fewer constraints than any other president in modern U.S. history. Agree or disagree?
METZGER: I agree.
SHAW: One of the most important decisions that I think operates as both sword and shield is the court’s immunity ruling from earlier this year, Trump v. United States, in which the Supreme Court handed Donald Trump sweeping new immunity from criminal prosecution for virtually any official acts taken as president. So what did you think was the most significant consequence or implication of that ruling?
METZGER: I think it’s really an unprecedented expansion of immunity for the president. The court divided up the instances when the president would be immune into a couple of camps.
One of them has to do with what we might call core or exclusive presidential powers, where the president has authority and it can’t be intruded on – for example, by Congress. In that area, what was really striking was how broadly the court viewed what counted as core power, including things like prosecution and investigation, suggesting that maybe Congress can’t impose restrictions on how those are undertaken – which would really be quite novel.
The other aspect was about how broadly it viewed official acts and the tests it established as to when immunity would apply. And it said the immunity would be presumptive. But it’s kind of hard to see how those presumptions are going to be overturned because immunity is going to be there unless it can be shown there’s no intrusion on the president’s power.
That’s a really high bar. And so for a vast area of actions, anything up to the outermost perimeter of the president’s official authority, all of that are areas in which the president is going to be immune.
These are restrained academic statements. They understate the reality of a lawless state that, in the early months after the Inauguration, is before us. The Supreme Court of the United States has done what the highest court of the Weimar Republic in 1932 did not do – pave the way for dictatorship. The case referred to in the above discussion came out of the January 6 prosecution, involving an attempted coup when the same President refused to leave office after his first term ended in defeat through the democratic process. In Trump v. United States the Supreme Court helped him effectively overthrow the U.S. Constitution by making prosecution for January 6 impossible after his reelection.
It is said that Benjamin Franklin was asked what kind of constitution the Founding Fathers had devised in Philadelphia in 1787. His answer was “A republic, if you can keep it.” Washington and Jefferson did not equate a republic with the rule of a strong man but with the rule of law provided by democratic institutions. The American Founding Fathers feared such a man as Donald Trump taking power and sought to divide power in the Constitution to prevent a takeover by a new executive monarchy such as had existed in the United Kingdom. The Canadian Founding Fathers did not fear such an occurrence because they placed implicit faith in the British parliamentary system.
What the Supreme Court of the United States did is discard the founding principles of the rule of law on which the Constitution of that country is based. It bestowed immunity in advance on a criminal and incompetent President, effectively becoming an accomplice in what would follow. This is not constitutional law: it is the law of the constitutional jungle, a return to a more primitive social contract reminiscent of Hobbes’s Leviathan. The irony is that the Republican Party that Trump leads has traditionally been the party of limited government.
The worst part of the Supreme Court decision is not its bestowing immunity for core presidential functions. One can understand the need for temporary limited immunity in wartime or comparable conditions, even if morally controversial decisions taken at the time turn out to have been unjustified. The U.S. Supreme Court in 1942 approved internment camps for Japanese Americans, for which official excuses were made decades later (Canada, which followed a similar policy, also apologized). It is legally justifiable that President Obama was not prosecuted for ordering the killing of Osama ben Laden or other terrorists, even ithough in one case the victim was an American citizen.
A related question can be asked about President Harry Truman for ordering the nuclear bombing of Hiroshima and Nagasaki and about Prime Minister Winston Churchill for approving the firebombing of Dresden. Were they guilty of war crimes? The answer of both British and American law is that they were not, but international law ruled at the time that the Nazi and Japanese leaders were responsible for war crimes. Under pressure of current events in the Middle East and Ukraine, the evolving answer of international law now appears to be that there would not be legal immunity were such tragic events to be repeated. On the criminal responsibility of heads of governments, international law and constitutional law are headed in opposite directions.
Note that last year’s U.S. Supreme Court decision applies only to the chief executive. Cabinet members and other public officials remain bound by traditional law. Generals or legal advisers, for example, do not benefit from presidential immunity. Under both international and constitutional law, there is still, as at the Nuremberg trials, no legal defence against criminal liability for following illegal orders.
According to the Supreme Court ruling, in many cases presidential immunity is absolute; in others, it will be presumptive but to overcome it a high bar is set. No wonder the January 6 charges were dropped. Apart from the fact that Trump was reelected and would have ended the prosecution against himself, the Supreme Court decision offered no assurance that he would have been convicted under such heavy legal constraints. This has now led to the most lawless and corrupt administration in American history, as suggested by another constitutional law professor, Leah Litman of the University of Michigan, in an April 14 podcast with host Greg Sargent of the New Republic:
SARGENT: Maybe the rule of law emerges bruised and battered but still subject to rehabilitation; and then on the other side, the rule of law ceases to exist. Where are you leaning right now?
LITMAN: I honestly don’t know. And that itself is extremely terrifying. I’m not getting a ton of sleep these days.
Litman’s new book, Lawless, came out in May and was described by the host as being “about the Supreme Court’s descent into darkness.”
Canada as constitutional hybrid
Jurists must tread lightly when they compare constitutions, but still the effort may be useful. Canada’s Constitution is a hybrid. Canada inherited the parliamentary system from Britain but also, because of its outsized geography, the principle of federalism from its neighbours. Its Constitution was negotiated under the shadow of the U.S. Civil War, in a series of conferences beginning in 1864. The autonomous state of Canada, known as a Dominion or self-governing colony, came into being through British legislation in 1867, the year the United States bought Alaska from Tsar Alexander II of Russia. That same year, Emperor Maximilian, put on the Mexican throne by his uncle Napoleon III following a French invasion, was executed after a short reign. It was a momentous time for the three countries of North America, just as our own time is.
The Canadian Founding Fathers did not look on the U.S. Constitution favourably. It was understandably seen as having failed. They rejected the separation of powers among the three main branches of government, and the American division of powers between the federal and state governments. Instead, they favoured parliamentary supremacy and a more balanced vision of federalism.
In 1900, the Australian Constitution, also created by the Westminster Parliament, established another federation. British jurists rejected federalism at home but, influenced by the United States, did not hesitate to set it up in the colonies.
Though the American, Canadian, Australian and Mexican divisions of powers are all different, they are nonetheless all federal because each country’s constitution prevents the legislature from changing it unilaterally. Criminal law falls under state jurisdiction in the United States, with some exceptions; it falls under federal powers in Canada. Public lands are mostly federal property in the United States, provincial in Canada. That is why we have provincial utilities but no Hydro-Canada.
The enhancement of judicial power in the American Republic began with the addition of the U.S. Bill of Rights to the 1787 Constitution. It was initially adopted by Congress in July 1789 before its ratification by the states. The French Declaration of the Rights of Man, whose first draft was written by the Marquis de Lafayette with the help of Thomas Jefferson, was adopted by the new French National Assembly in August of that year. The Bill of Rights was adopted by Congress with the blessing of George Washington, who, after being the commander-in-chief in the American Revolutionary War with the critical support of the French who had been mostly led by Lafayette, was serving as the first President. Washington received the keys to the Bastille, which had been stormed in July, as a gift from his former deputy a few months after his Inauguration. The overthrow of the French monarchy echoed the successful revolution against George III, though the French Declaration of Rights remained primarily moral and symbolic and of little legal effect under the many French constitutions that followed.
In the United States, quite to the contrary, the Supreme Court assumed in 1803 in the seminal case of Marbury v. Madison that it implicitly and logically had the power to strike down legislation so as to enforce the Bill of Rights. This was a second American revolution – of a legal character and totally unprecedented anywhere. The Canadian Supreme Court, upon its creation in 1875, only obtained similar authority under British supervision in relation to the federal division of powers. It assumed responsibility for application of the Canadian Charter of Rights in 1982 and thus became a coequal branch of government on the U.S. model. This is a status still not enjoyed by British courts, although – much to the chagrin of nationalist British politicians – the European Court of Human Rights comes close.
A basic maxim of 20th-century American constitutional law was that the judiciary was the least dangerous branch of the state because its sole function was to provide safeguards against the excesses of the other two. Now the Supreme Court, like Congress, shows signs of abandoning this honourable legacy to an all-powerful executive. At the time of writing, a standoff between the President and the judiciary over the deportation of immigrants is taking shape. The Supreme Court may well reap the poisonous fruit of the rotten tree it planted in 2024. Like Dr. Frankenstein, it is now attempting to curb some of the arbitrary measures of the constitutional monster it has created. It is not clear that it will succeed.
Prime ministers are not kings even if presidents tend to be
With respect to the chief executive, while the powers of the American president are defined in the Constitution, those of British and Canadian prime ministers are nowhere to be found in a constitutional or other legal document. They are entirely the product of political culture, known in legal parlance as constitutional conventions, a term which has a markedly different meaning in the United States.
Constitutional conventions in Canada are unwritten norms at the core of the British and Canadian parliamentary system. They provide for collective responsibility of Cabinet to Parliament, the executive powers of the prime minister, the need for government to maintain the support of a majority in Parliament and the obligation for government to resign if this support is withdrawn.
Thankfully, there have so far been no parallels in Canadian law to the troubling immunity decision in the United States. Canadian law is going in the opposite direction. Crown immunity has steadily declined in the past century, and it has never provided prime ministers with a legal status that would put them above the rule of law.
Crown immunity has declined even with respect to extensions of the royal person. In Quebec recently, a former lieutenant-governor, Lise Thibault, sought to avoid prosecution for fraud in her expense accounts by claiming sweeping Crown immunity. The court’s response was that the time for such a legal position was long past. The Supreme Court of the United States has handed American presidents a legal immunity Canadian prime ministers have never had and British monarchs and their representatives have lost.
The Declaration of Independence of July 4, 1776, was personally directed at King George III. It is said that had George Washington wished it, he could have become king and remained in power for life. He retired peacefully, in sharp contrast to Napoleon Bonaparte who, like him, had been the providential saviour of his country’s revolution. Also in sharp contrast fo Donald Trump. Trump recently said that men who save their countries cannot be said to act illegally, a line apparently taken from a film about Bonaparte.
George III went mad and never accepted the reality of American independence. He spent the last ten years of his life in an asylum for the insane. Indigenous peoples say that time moves in a circle. The United States began by removing a king who went mad and now needs to get out from under a President mad enough to believe he should be king.
A republic of Quebec?
Quebec will one day be a republic. About 70 per cent of its people reject the British and Canadian monarchy. They dislike it viscerally with almost the intensity (though without the anger) of the Irish, and for the same reason: it is the palpable symbol of British conquest. Moreover, monarchy is profoundly incompatible with Quebec’s evolving national identity, which is moving closer to the modern French values of republicanism, social democratic liberalism and secularism that emerged after the Conquest.
Québec’s National Assembly recently abolished its members’ oath of allegiance to the King. Support for the abolition of the monarchy is a constitutional wedge issue. It is currently more popular in Québec than sovereignty, defence of the French language, secularism or the environment. Other unilateral measures may soon follow in a provincial constitution. Unclear is whether an autonomous nation-state of Québec will ultimately take the form of a republic within or outside Canada, and whether it will keep the British and Canadian parliamentary system or choose an American- and French-style dominant executive system that can one day degenerate into strongman rule.
What is happening in the United States should provide valuable lessons to proponents of a republic in both Canada and Quebec. The need to rein in the chief executive under the rule of law is as pressing now as it was in the 18th century. The failure of the American Constitution, like the fall of Antarctic ice into the ocean, has historic implications. As in 1867, the British parliamentary system, despite its failings, is more appealing.
The constitutions of the United States and of Canada are both under pressure because of underlying changes in the fundamental social contracts, although for opposite reasons. The American people appear open to having a king. More than ever, the people of Quebec, and Canada, do not.
